State v. Dereyna

750 So. 2d 215, 99 La.App. 5 Cir. 614, 1999 La. App. LEXIS 3111, 1999 WL 1050050
CourtLouisiana Court of Appeal
DecidedNovember 10, 1999
DocketNo. 99-KA-614
StatusPublished
Cited by2 cases

This text of 750 So. 2d 215 (State v. Dereyna) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dereyna, 750 So. 2d 215, 99 La.App. 5 Cir. 614, 1999 La. App. LEXIS 3111, 1999 WL 1050050 (La. Ct. App. 1999).

Opinion

| .DALEY, J.

The defendant, Otis J. Dereyna, has appealed his convictions of possession with intent to distribute narcotics. Mr. Derey-na was charged by a three-count Bill of Information. Count one charged him with [217]*217possession with intent to distribute a controlled dangerous substance, 3, A-methy-lenedioxy-methamphetamine (MDMA),1 in violation of LSA-R.S. 40:966 A; count two charged him with possession with intent to distribute a controlled dangerous substance, Hydrocodone,2 in violation of LSA-R.S. 40:967 A, and count three charged him with possession of a controlled dangerous substance, cocaine3 over 400 grams, in violation of LSA-R.S. 40:967 F. On count three, the original charge of possession of cocaine over 400 grams, was later amended Uto reduce the amount to over 200 grams but not over 400 grams. Defendant entered a plea of not guilty, and filed a Motion to Suppress the Evidence. Following the denial of the motion, defendant withdrew his former plea and entered a plea of guilty as charged on all counts, as amended. He reserved his right under State v. Crosby, 338 So.2d 584 (La.1976) to appeal the denial of the Motion to Suppress. On appeal, defendant assigns as error the trial judge’s denial of his Motion to Suppress the evidence.

FACTS

At the Motion to Suppress hearing, Agent Donald DeSalvo testified he is employed by the Jefferson Parish Sheriffs Office to work at the airport’s narcotics unit. On December 9, 1996, he received a telephone call from Agent Todd Vignes, a member of the Jefferson Parish Sheriffs Narcotics Division. Agent Vignes informed Agent DeSalvo that he (Agent Vignes) received information from a reliable confidential informant that a suspect was bringing illegal narcotics, specifically cocaine, to and from Miami. The informant told Agent Vignes the suspect’s first name was “Otis.” The suspect was described as a “very large” white male, with short black hair, who was six feet and seven inches in height, and weighed approximately three hundred pounds. The suspect was traveling to and from Miami, and would be coming into New Orleans in the next few days after having picked up illegal narcotics.

Agent DeSalvo began to monitor all of the Miami flights. In doing so, he and his partner observed a subject departing from a Miami flight who fit the suspect’s description “to a tee.”

| ¿Agent DeSalvo, who identified defendant in court as the suspect, stated that defendant, walked past him, looking “nervous.” In his experience as a narcotics agent, he has observed that people who exit a flight carrying illegal substances are frequently “extremely nervous.” Based on the suspects appearance and his behavior Agent DeSalvo and his partner began to maintain surveillance on defendant.

Defendant proceeded to walk to the main lobby, while looking back several times. Defendant gave the appearance that he was looking back to see if he was being followed. As defendant approached the escalator leading to the baggage area, he came to a complete stop in the lobby, turned around, and scanned the area for approximately ten seconds. The agents walked past defendant in order to avoid detection. The defendant then walked toward the pay telephones. He stood near the cluster of telephones, sat there, and constantly looked around throughout the airport. Agent DeSalvo described the defendant as acting “very very nervous” and looking “scared.”

Defendant left the telephone location and walked downstairs toward the baggage claim areá. He waited one or two minutes, then picked up two bags which had been placed on the conveyor belt. After he picked up the bags, the two agents [218]*218approached the defendant, identifying themselves as police officers. They asked him if they “could speak to him for a second.” When defendant was first approached, he had the bags in his hands. However, when the agents walked up to him, defendant put them down, and walked several feet away from the bags. Accordingly to Agent DeSalvo the defendant appeared to be distancing himself from the baggage. Based on Agent DeSalvo’s experience in working at the airport, a number of people with illegal contents in their baggage will try to distance themselves from the baggage.

| ¡Agent DeSalvo testified that when he asked to speak to defendant, defendant replied, “Yeah. What’s the problem?” Agent DeSalvo responded, “We’re police officers here at the airport. We’re investigating a complaint.” The agent asked defendant if he had an airline ticket on him. Defendant produced a cash round trip ticket, originating from New Orleans, and indicating his first name was “Otis.” At the officers’ request, the defendant produced identification, matching the name on the airline ticket. Agent DeSalvo told defendant that he. had information that someone matching his description and having his first name was going to be carrying illegal narcotics from Miami to New Orleans. He asked defendant if he was carrying illegal narcotics and defendant replied negatively.

Agent DeSalvo stated that when he first approached defendant, and informed him he was a police officer, as well as mentioning “narcotics agent,” defendant’s face whitened and he seemed “almost desperate” as well as “nervous.” Agent DeSalvo and his partner were “a little nervous” as well, considering defendant’s size. At that time the agents did not know whether defendant had any weapons on him.

After defendant replied negatively regarding the carrying of any illegal drugs, Agent DeSalvo asked defendant for permission to search his bags. Defendant replied he did not have narcotics in his bags. The agent viewed that response as a denial of his request for permission to search the bags.

Agent DeSalvo next asked defendant if he had a weapon on his person. Defendant replied negatively. After receiving that reply, the agent then asked, “Do you mind if I just pat you down?” Agent DeSalvo testified that he requested the pat-down because he was concerned for his safety, and he wanted to be certain defendant was not carrying anything which would hurt him.

lfiAs Agent DeSalvo patted defendant down, he felt a large bulge in defendant’s front pocket. Agent DeSalvo testified that he was “definitely” concerned for his safety. However, he had no idea what the soft bulge could have been, but had reason to believe it could have been a weapon. He explained that on several occasions he has recovered weapons which were wrapped inside a soft bulge. The technique of wrapping weapons in a soft bulge was especially true of individuals who were stopped at the airport. These individuals believe that they can conceal these items by wrapping them in handkerchiefs, or big bulky material which will escape detection.

At this point, he asked the defendant to identify the bulge. Agent DeSalvo testified that defendant “really seemed nervous” and stated, “Hey, it’s nothing, it’s just some aspirin.” Agent DeSalvo asked to see the bulge. The defendant pulled out the object far enough out of his pocket so that the agent could determine the nature of the object. Agent DeSalvo testified that he saw a plastic ziplock bag with the number “1,000” written on it. The bag contained several other bags, each of which" contained large white pills which did not look like aspirin. Agent DeSalvo testified that from his experience in illegal narcotics, he knew the pills would probably be illegal narcotics.

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Related

State v. Haywood
783 So. 2d 568 (Louisiana Court of Appeal, 2001)
State v. May
760 So. 2d 1260 (Louisiana Court of Appeal, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
750 So. 2d 215, 99 La.App. 5 Cir. 614, 1999 La. App. LEXIS 3111, 1999 WL 1050050, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dereyna-lactapp-1999.